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R U L I N G
ADINYIRA (MRS), JSC:
“The right of appeal is jettisoned
frequently for an immediate tryst
with prerogative proceedings. I
think the time has come when the
distinction should be punitively
maintained.”
Per Francois J.A. (as he then was)
in The Republic v. Circuit Court
Accra; Ex parte Appiah [1982-83]
GLR 129 at page 145.
The applicant, Al-Hassan Limited,
a real estate development company
has invoked the supervisory
jurisdiction of the Supreme Court
under Article 132 of the
Constitution of Ghana, 1992 for an
order of certiorari for the
purpose of quashing a ruling dated
5 July 2010, of the High Court
(Land Division, Court 2) Accra
presided over by Justice F.K.
Awuah and a further order of
prohibition to prevent the said
judge from sitting on the
Applicant’s Motion for an Order of
Interlocutory Injunction and the
substantive land suit entitled Al-Hassan
Limited v. Thaddeus Sory .
The grounds for the application
are that:
1)
“The Order by the Trial High Court
precluding the Applicant from
relying on the Applicant’s
Supplementary Affidavit filed on
4/5/2010 in support of the Motion
on Notice filed on 7/4/2010 by the
Applicant for an Order of
Interlocutory Injunction was a
grave violation of the rules of
natural justice, especially in its
audi alteram partem ambit, as the
said Order denied the Applicant
the opportunity to respond to the
Interested Party’s Affidavit filed
on 15/4/2010 in opposition to the
Applicant’s Motion for an Order of
Interlocutory Injunction that the
trial Judge adjourned to 9/7/2010,
not to mention the sequel of such
preclusion to Applicant’s Motion.
2)
While making the Order on
5/7/2010 precluding the Applicant
from relying on the Applicant’s
Supplementary Affidavit filed on
4/5/2010 in support of the Motion
on Notice filed on 7/4/2010 by the
Applicant for an Order of
Interlocutory Injunction, the
trial judge, Mr. Justice F.K.
Awuah, J, prejudged the issues
raised by the Applicant’s Motion
for an Order of Interlocutory
Injunction by making such
statements, amongst others, to the
effect that:
1)
The Application for Interlocutory
Injunction must be taken without
the Supplementary Affidavit
quickly because the Defendant was
suffering hardship. This is a
clear indication that the Judge is
so biased against the Applicant
herein that he has already made up
his mind to dismiss the
Applicant’s application for an
Order of Interlocutory Injunction
even before same is heard on
9/7/2010;
2)
The Supplementary Affidavit filed
on 4/5/2010 by the Applicant was
not necessary for the
determination of the Motion for
Interlocutory Injunction.
3)
The combined effect of the
foregoing shows uncalled for bias
by the Trial Judge against the
Applicant and the Applicant’s case
pending before him.”
Facts
The applicant, commenced legal
proceedings at the High Court
(Land Division Court 2) Accra
against the interested party,
claiming a declaration of title to
a piece or parcel of land situated
or lying at Dzornaman, East Legon,
Accra, recovery of possession, and
perpetual injunction among other
reliefs. The applicant applied for
an order for Interlocutory
Injunction to restrain the
interested party from continuing
with the development of the land.
The interested party contested the
application for Interlocutory
Injunction by filing an affidavit
in opposition and a statement of
case. The applicant filed a
supplementary affidavit in
reaction to the affidavit in
opposition of the interested
party. The interested party took
objection to the supplementary
affidavit filed by the applicant
on the grounds that it was not
warranted by law and filed without
leave of the court. This objection
came by way of a motion on notice
to the High Court to have the
supplementary affidavit set aside.
The High Court upheld the
objection and set aside the
supplementary affidavit with the
reasoning that the filing of the
supplementary affidavit was not
warranted by the relevant rules
under Order 25 of the High Court
(Civil Procedure) Rules, 2004,
(C.I. 47). He held further that
since he did not find any material
difference between the
supplementary affidavit and the
affidavit in support of the motion
for interlocutory injunction,
except the attachment of an
affidavit of one Benjamin K. Annan,
which he considered irrelevant for
the application pending in Court,
he was unable to grant him leave
to file the process.
Preliminary issue
In his statement of case the
interested party indicated that
his statement was filed out of
time and therefore prayed the
court to exercise its discretion
to extend the statutory period of
14 days and adopt the present
statement. We exercise our
discretion under rule 79 of the
Supreme Court Rules, 1996, C.I.16
and waive the irregularity.
Submissions by Parties
The applicant in its statement of
case alleges that the order of the
High Court in setting aside its
supplementary affidavit in support
of the Motion for Interlocutory
Injunction pending before the
Court; denied it the opportunity
to respond to the Interested
Party’s Affidavit in opposition;
and that this preclusion was a
grave violation of the audi
alteram partem rule of natural
justice. Furthermore, the rules of
natural justice require the High
Court Judge to act fairly and
reasonably, and so he ought to
have allowed the applicant to be
heard on its supplementary
affidavit in order to respond the
allegation averred to in the
Interested Party’s affidavit in
opposition. He concluded that:
“The preclusion of the Applicant’s
Supplementary affidavit aforesaid
by the order of the High Court
handed down on 5/7/2010 is a stab
in the back of natural justice and
same ought to be quashed by an
order of certiorari emanating from
this Honorable Supreme Court.”
In response, the interested party
stated that both parties were
heard and if the Applicant was
dissatisfied with the reasoning of
the court his remedy was to appeal
against the ruling. He stated
further that:
“It is our submission that it is
stretching the rules of natural
justice to absurd limits if it is
contended as Applicant suggests in
its present application that once
a court takes the view after
hearing a party that that a party
ought not to rely on a particular
document then the court has
breached the audi alteram partem
rule of natural justice.”
The rules of natural justice
It is a basic principle of common
law that certiorari and
prohibition would automatically be
granted to quash a judgment or
prevent a biased judge from
hearing a suit upon satisfactory
proof of the breach of any
principles of the rules of natural
justice. Accordingly proof of a
breach of any of the rules of
natural justice is a proper ground
for grant of certiorari and
prohibition independent of grounds
of error on the face of the record
or excess of jurisdiction. See
the Republic v. High Court Accra;
Ex parte Agbesi Awusu II (No.2) (Nyonyo
Agboada Sri III) Interested Party
[2003-2004] 2SCGLR 907.
There is a plethora of authorities
in respect of the rules of natural
justice providing the minimum
standards of fair decision-making
by the common law on adjudicating
bodies. These include the
principles that parties should be
given prior notice and an
opportunity to be heard, the
requirement to act fairly and
reasonably and an entitlement to
an unbiased decision maker.
Counsel for the Applicant referred
us to the cases of The Republic
v. High Court, Denu; Ex parte
Agbesi Awusu ii (No.2) (Nyonyo
Agboada (Sri III) Interested Party
[2002-2004] SCGLR 907; Aboagye v.
Ghana Commercial Bank
[2001-2002]SCGLR796 at 806 and
Awuni v West African Examination
Council [2003-2004] 1SCGLR 471.
Date-Bah JSC in the Ex parte
Awusu II (No.2) (supra) at
pages 924 to 925 stated:
‘‘Natural justice or procedural
fairness demands not only that
those affected by a decision
should be given prior notice and
an opportunity to be heard (audi
alteram partem rule), but also
that there should be an
entitlement to an unbiased
decision maker (nemo index causae
suae and allied ideas)’’
Consideration
The applicant’s complaint is that
the learned judge is in breach of
both ambits of the rule of natural
justice, namely the audi alteram
partem rule and the nemo index
causae suae rule.
Breach of the Audi alteram partem
rule
In applying the above rules and
authorities, our first focus is
whether Justice Awuah breached the
audi alteram partem rule by
setting aside the supplementary
affidavit. On the face of the
ruling complained of, it is clear
that both parties were heard on
the issue as to whether or not the
supplementary affidavit filed on
behalf of the Applicant could be
admitted as part of the process
for determining the motion for
interlocutory injunction. In our
opinion the High Court judge
having heard both parties
beforehand acted fairly and within
jurisdiction to determine the
issue. It was a matter entirely
within his discretion as required
under Order 81 of the High
Court (Civil Procedure) Rules,
2004, (C.I. 47). The learned judge
may well be wrong in the decision
made, but the avenue of remedy
open to the applicant in such
circumstances is not by way of
certiorari. A complaint that there
has been an improper exercise of
the discretionary jurisdiction is
insufficient A charge that a court
has improperly misconceived a
point of law or misdirected itself
cannot per se constitute
sufficient ground for the grant of
certiorari, in the absence of any
jurisdictional error on the face
of the record. Even then that is
not the complaint by the applicant
before us.
We take notice of the fact that
the motion for Interlocutory
Injunction is still pending before
the High Court and in the
circumstances the Applicant still
has a chance and the right to be
heard on his application. Though
the Judge by the order of 5/7/2010
has set aside the supplementary
affidavit in answer to the
affidavit in opposition there are
other procedures that his counsel
could possibly adopt under the
rules of procedure and the law of
evidence to challenge any of the
facts deposed to in the affidavit
in opposition to his motion.
We hold that from the
circumstances of this case the
High Court Judge did not breach
the audi alteram partem rule. If
the applicant disagreed with the
decision, the remedy open to him
in the circumstances of this case,
was by way of appeal, not by
certiorari to quash that ruling.
There is the need to keep the
distinction between appeals and
certiorari.
Distinction between Appeal and
Certiorari
Francois J.A. (as he then was)
stated in the case of The
Republic v. Circuit Court Accra;
Ex parte Appiah [1982-83] GLR 129
at page 145 that:
“The right of appeal is jettisoned
frequently for an immediate tryst
with prerogative proceedings. I
think the time has come when the
distinction should be punitively
maintained.”
It is our thinking that parties
fancy prerogative proceedings as
it is faster and concise. The only
record required for prerogative
proceedings are the document that
initiated the proceedings, the
pleadings if any and the
adjudication. See R
v.Northumberland Compensation
Appeal Tribunal; Ex parte Shaw
[1952] 1 K.B. 338 at p.352,
C.A. cited with approval in Ex
parte Appiah (supra).What
seems to be oblivious to parties
and their lawyers is that the
Supreme Court sparingly exercises
its supervisory jurisdiction over
a superior court and it does so
only where there is a clear
fundamental non-jurisdictional
error or a breach of the rules of
natural justice. Unlike an
appellate court, the Court in its
supervisory role cannot interfere
merely because a decision is wrong
in law.
This Court restated the law
regarding the exercise of its
supervisory jurisdiction over the
superior courts of judicature in
two cases of The Republic v,
High Court Accra; Ex parte
Commission on Human Rights and
Administrative Justice (CHRAJ)
(Addo Interested Party)
[2003-2004] 1 SCGLR 312 at
pages 345 to 346 per Date-Bah JSC
; and The Republic v. Court of
Appeal, Accra; Ex parte Tsatsu
Tsikata [2005-2006] SCGLR 612
at 619 per Georgina Wood JSC (as
she then was). The legal
principles laid down in these two
cases were subsequently summarized
by Date-Bah JSC in the case of
The Republic v. High Court
(Commercial Division) Accra; Ex
parte The Trust Bank Ltd. (Ampomah
Photo lab Ltd. & Three Others
(Interested Parties) [2009] SCGLR
164 at page 169 of the Report
as follows:
“The combined effect of these two
authorities, it seems to me, is
that even where a High Court makes
a non-jurisdictional error which
is patent on the face of the
record, it will not be a ground
for the exercise of the
supervisory jurisdiction of this
Court unless the error is
fundamental. Only fundamental
non-jurisdictional error can found
the exercise of this court’s
jurisdiction.”
This distinction between
certiorari and appeals was drawn
by the eminent Bamford -Addo JSC
(as she then was) in the case of
The Republic v. High Court
Accra; Ex parte Industrialization
Fund For Development Countries and
Another; [2003-2004] SCGLR 348.
She said at page 354 that:
“It is to be noted that there is a
clear distinction between
certiorari and appeal, which is
lost on litigants and their
lawyers. When the High Court, a
Superior Court, is acting within
its jurisdiction, its erroneous
decision is normally corrected on
appeal whether the error is one of
fact or law. Certiorari however is
a discretionary remedy, which
would issue to correct a clear
error of law on the face of the
ruling of the court, or an error
which amounts to lack of
jurisdiction in the court so as to
make the decision a nullity. In
the case of error not apparent on
the face of the ruling or those of
fact the avenue is by way of
appeal.”
Francois J.A. (as he then was)
also stated at page 143 in Ex
parte Appiah (supra) that:
“The remedies of appeal and
certiorari are different and must
not be blurred. [That] certiorari
and appeals are not alternative
remedies but are mutually
exclusive”.
As stated earlier if the applicant
was dissatisfied with the decision
of the High Court, the remedy open
to him in the circumstances of
this case, was by way of appeal to
the Court of Appeal, and not by
invoking our supervisory
jurisdiction.
For the above reasons the writ of
certiorari does not lie to quash
the ruling of 5 July 2010, the
application is misconceived and it
is refused.
Breach of the nemo index causae
suae rule
The Applicant further seeks an
order of Prohibition restraining
the High Court Judge from hearing
the motion of interim injunction
and the substantive land suit, due
to some statements he made during
the delivery of his ruling
exhibiting bias against it.
The supervisory jurisdiction of
this Court will be exercised to
ensure that no superior court
judge decides a case where there
is bias or a real likelihood of
bias. However a charge of bias or
the likelihood of bias has to be
established on balance of
probability by the person alleging
same. The test which has been
applied to the determination of
whether there is apparent bias is
the real likelihood of bias test.
See Adzanku v. Galenku [1974 1
GLR 198 at 202 and The
Republic v. High Court, Denu; Ex
parte Agbesi Awusu (No.1) (Nyonyo
Agboada (Sri III) Interested Party
[2002-2004] SCGLR 864 at page 894
We therefore need to review
carefully the evidence which has
been put forward by the Applicant
in support of the allegation of
bias against Justice Awuah, to
find out whether there is or is
not under the circumstances a real
likelihood of bias.
It will be recalled that the
pronouncements that the Applicant
complains they suggest the
impartiality of the judge were
contained in two statements which
were in the following terms:
3)
While making the Order on 5/7/2010
precluding the Applicant from
relying on the Applicant’s
Supplementary Affidavit filed on
4/5/2010 in support of the Motion
on Notice filed on 7/4/2010 by the
Applicant for an Order of
Interlocutory Injunction, the
trial judge, Mr. Justice F.K.
Awuah, J, prejudged the issues
raised by the Applicant’s Motion
for an Order of Interlocutory
Injunction by making such
statements, amongst others, to the
effect that:
1)
The Application for Interlocutory
Injunction must be taken without
the Supplementary Affidavit
quickly because the Defendant was
suffering hardship. This is a
clear indication that the Judge is
so biased against the Applicant
herein that he has already made up
his mind to dismiss the
Applicant’s application for an
Order of Interlocutory Injunction
even before same is heard on
9/7/2010;
2)
The Supplementary Affidavit filed
on 4/5/2010 by the Applicant was
not necessary for the
determination of the Motion for
Interlocutory Injunction.
The combined effect of the
foregoing shows uncalled for bias
by the Trial Judge against the
Applicant and the Applicant’s case
pending before him.”
Counsel for the applicant contends
in his statement of case that:
“It is true that (the) statements
made by (the) High Court Judge at
the time of handing down his order
dated 5/7/2010 were obiter. But in
the view of the applicant, those
statements made it impossible for
the judge to bring a completely
impartial mind to bear upon his
determination of the application
for interlocutory injunction
pending before him as well as the
actual substantive land suit.”
With respect to the first
statement, the Interested Party
stoutly denied in an affidavit in
opposition to this application and
at the hearing before us that such
statement was made and that Mr.
Sonny Mould a director of the
Applicant who deposed to these
facts though not present in Court
the day the ruling was given
failed to disclose his source of
information of the facts he
deposed to in his supplementary
affidavit.
We have examined the ruling of the
Court dated 5 July 2010 and it is
clear on the face of the record
that no representative of the
Applicant, a limited liability
company, was present in Court on
the said date. Furthermore the
statement complained of is not
contained in the record.
Accordingly we hold that there is
no evidence to substantiate the
alleged prejudicial statement.
Regarding the second statement we
find that words to that effect
formed part of the reasoning for
setting aside the supplementary
affidavit in the ruling of
5/7/2010. For clarity we set out
the statement in the context that
it was made. They are as follows:
“In the final analysis, the court
is inclined to grant the instant
application brought at the
instance of the Defendant for the
following reasons:
a)
That the filing of the
supplementary affidavit is not
warranted under Order 25 of C.I.
47
b)
That the Plaintiff failed to seek
leave of the Court before filing
same
c)
The Court does not find the said
supplementary affidavit dominant
and crucial for the determination
of the pending interlocutory
injunction as same is
substantially the same as the main
affidavit in support.(Emphasis
mine)
The supplementary affidavit of the
Plaintiff filed on 4 May 2010 is
hereby set aside for the purpose
of the interlocutory injunction”
We fail to see how the words
complained of (highlighted above)
“shows uncalled for bias by the
Trial Judge against the Applicant
and the Applicant’s case pending
before him,” as is being claimed
by the Applicant. The Judge was
giving reasons for issuing that
order and there is no such
evidence before us to suggest that
the judge was biased or a
suspicion of a real likelihood of
bias. If the Applicant was
dissatisfied with the reasoning,
the remedy then open to Counsel is
to challenge the ruling on appeal
to the Court of Appeal rather than
to invoke the supervisory
jurisdiction of the Supreme Court.
It would be absurd to issue an
order of prohibition to restrain a
judge of the superior court from
exercising his judicial function
simply because he has ruled to
exclude a document or a piece of
evidence that a party seeks to
rely on in support of his or her
case. A court of competent
jurisdiction may decide questions
before it rightly or wrongly. The
appeal process exists for
correcting all errors as to the
facts and to the law made by a
High Court. Unless of course
there is substantiated evidence
constituting legal bias such as
the personal interest of the judge
in the subject matter,
relationship between the judge and
counsel or one of the parties, or
in some other way his conduct or
behavior that may give rise to a
suspicion that he is not
impartial. Such instances would
automatically disqualify a judge
from hearing the case. In such
circumstances the prerogative
writs of certiorari and
prohibition will respectively lie
to quash the proceedings and
orders made by such a judge and to
restrain the judge from continuing
with the case.
Speaking generally, we are of the
view that short of appealing
against interlocutory decisions
made by a trial court during the
pendency of a case, a party by his
counsel may prudently find other
ways of making out his case as
provided by the rules of procedure
and the law of evidence. A counsel
must have an intuitive recognition
of what the circumstances of the
case require as it unfolds itself
before the court. This may help to
expedite proceedings in court and
minimize the delays that have
characterized the administration
of justice in this country.
We do not find any evidence to
substantiate the allegation of
bias or a real likelihood of bias
against Justice Awuah. In the
result the application for the
issue of the order of prohibition
against the High Court Judge is
refused.
For the above reasons the
application for the orders of
certiorari and prohibition fails.
The application is dismissed.
S. O.
A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME
COURT
ANIN
YEBOAH
JUSTICE OF THE SUPREME
COURT
P.
BAFFOE-BONNIE
JUSTICE OF THE SUPREME
COURT
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
V.
AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
COUNSEL
KWABLA SENANU FOR THE APPLICANT
YONNY KULENDI FOR THE INTERESTED
PARTY/RESPONDENT
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